December 2009

'The Devil is in the Details' of Ninth Circuit's Decision on Municipal Sign Codes

The Ninth Circuit’s recent decision in Reed v. Town of Gilbert, 2009 WL 39250233 (9th Cir. 2009) reaffirms the Court’s acceptance that speaker-based and event-based exemptions to municipal sign codes may be a content-neutral regulation. Cities may confidently consider speaker-based and event-based exemptions to sign regulations but should take extreme care in drafting well tailored language.

CEQA’s One-Year Rule for Certifying an EIR Not Mandatory, Says First Appellate District

On December 2, the First Appellate District issued an important decision in Schellinger Brothers v. City of Sebastopol, rejecting a developer's ability to challenge a lead agency's decision to continue processing an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) even after the expiration of the one-year period for certification of an EIR set forth in CEQA section 21151.5. Read more here.

Metropolitan Transportation Commission (MTC) Announces Funding for Innovative Transportation Plans, Including Climate Action Plans

As the new year approaches, my colleagues and I are reflecting on what this year brought to climate change law and looking ahead for upcoming regulations. For example, this month the Environmental Protection Agency (EPA) issued a final finding that greenhouse gas emissions pose a danger to human health and the environment. We at Meyers Nave are particularly focused on the struggle of cities and counties to access the funds needed to implement recent climate change laws in a poor economy. To this end, we welcome the Metropolitan Transportation Commission's announcement that it has established a pool of funding to be used locally for innovative transportation projects.

MTC is a nine-county Bay Area regional transportation planning body and its funding will be focused on at least four components. The first, and most remarkable for cities, is the funding of climate action plans that contain innovative parking campaigns such as SFPark. Other programs that may receive funding include Safe Route to Schools programs, educational outreach for the link between climate change and transportation choices, and evaluation models to ensure that all regional projects have consistent metrics.

This program is one step towards the reductions required in climate legislation such as AB 32 and SB 375, and a step away from historical transportation planning which focuses on increasing capacity for cars.

For more information regarding the funding program, see San Francisco Streetsblog report of MTC’s funding announcement.

Court of Appeal Requests Further Briefing in Medical Marijuana Dispensaries Case

The California Court of Appeal has requested additional briefing in Qualified Patients Association v. City of Anaheim. At issue in this case is the validity of City of Anaheim's ordinance banning medical marijuana dispensaries.

The appeal arises out of the trial court's ruling sustaining the City's demurrer and holding that the ordinance is not preempted by California's Compassionate Use Act and Medical Marijuana Program Act. The Court's invitation for further briefing centers on Health and Safety Code Section 11570, which bars as nuisance the use of any premises for unlawful distribution, storage, or manufacture of controlled substances, including marijuana. Read more here.

Court Upholds Redevelopment Agency's Authority to Impose Design and Development Controls

In a major victory for redevelopment agencies seeking to adopt and implement redevelopment plans, the California Court of Appeals ruled that redevelopment agencies have broad authority outside of local zoning laws to impose design and development controls.

The ruling came less than a week after oral arguments in a case involving a redevelopment project in the North Hollywood section of Los Angeles (NoHo). In its unpublished decision, the Court of Appeals emphasized that when a redevelopment agency adopts and implements a redevelopment plan under the Community Redevelopment Law, it is carrying out state, not local, policy.

The case stems from the September 2007 adoption by the Community Redevelopment Agency of the City of Los Angeles (CRA/LA) of design guidelines for development in NoHo. The design guidelines adjusted the allowable densities, building sizes, floor area ratios, and other development and design criteria in the project area to concentrate higher densities near mass transit, to preserve the character of the different NoHo neighborhoods, and to provide opportunities for density bonuses in exchange for community benefits that furthered the goals of the redevelopment plan.

Local developer JSM sued the CRA/LA and the City of Los Angeles, alleging that the design guidelines were a de facto zoning ordinance because they altered the allowable zoning characteristics for the area. Based on this assertion, JSM insisted the design guidelines were not properly adopted pursuant to state zoning and planning laws. JSM also argued that the reduction in base density to allow the CRA/LA to provide density bonuses violated the mandates of state density bonus law.

The trial judge rejected all of JSM's allegations, finding the design guidelines were implementing a lawfully adopted redevelopment plan; therefore, laws governing the adoption of zoning ordinances did not apply and there was no conflict with state density bonus law.

The Court of Appeals, in an unpublished opinion affirmed the trial court in full. The Court explained that the actions of a redevelopment agency to implement a redevelopment plan carry out the mandates of state, not local, laws. Since the design guidelines simply implemented the policies of the redevelopment plan, the Court found that the CRA/LA was acting within its authorities under state redevelopment law and that local zoning law was inapplicable.

This was a key holding in the opinion because the Court expressly rejected the developer's argument that actions taken to adopt and implement state redevelopment law cannot impact the zoning in the redevelopment plan area.

Read more here.